1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JANENE A., Case No. C19-5995 TLF 7 Plaintiff, v. ORDER AFFIRMING DECISION 8 COMMISSIONER OF SOCIAL SECURITY, 9 Defendant. 10
11 Plaintiff has brought this matter for judicial review of defendant’s denial of her 12 applications for disability insurance and supplemental security income (SSI) benefits. 13 The parties have consented to the jurisdiction of a Magistrate Judge. 28 U.S.C. § 14 636(c); Federal Rule of Civil Procedure 73; Local Rule MJR 13. For the reasons set 15 forth below, the Court affirms Defendant’s decision to deny benefits. 16 I. ISSUES FOR REVIEW 17 1. Did the ALJ properly evaluate the medical opinion evidence? 2. Did the ALJ properly evaluate the lay evidence? 18 3. Did the ALJ properly evaluate plaintiff’s subjective testimony? 4. Did the ALJ err at step two of the sequential evaluation? 19 II. BACKGROUND 20 Plaintiff filed applications for DIB and SSI in January and February 2017, alleging 21 a disability onset date of August 22, 2016. AR 171-74, 187-92. Plaintiff’s applications 22 were denied initially and on reconsideration. AR 103-09, 106-09, 112-14, 115-17. 23 Administrative Law Judge (“ALJ”) Rudy M. Murgo held a hearing on August 8, 2018. AR 24 1 29-56. On October 15, 2018, the ALJ issued a decision that plaintiff was not disabled. 2 Tr. 12-28. On August 14, 2019, the Appeals Council denied Aguilar’s request for review. 3 AR 1-3. 4 Plaintiff seeks judicial review of the ALJ’s October 15, 2018 decision. Dkt. 12.
5 III. STANDARD OF REVIEW 6 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's 7 denial of Social Security benefits if the ALJ's findings are based on legal error or not 8 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 9 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a 10 reasonable mind might accept as adequate to support a conclusion.’” Biestek v. 11 Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted). This requires “more 12 than a mere scintilla,” of evidence. Id. It is not the same standard as would apply in a 13 case adjudicated by the Board of Immigration Appeals, where the decision of the Board 14 of Immigration Appeals is reversible when evidence in the record “not only supports that
15 conclusion, but compels it.” Ahearn v. Saul, __ F.3d __, No. 19-35774, 2021 WL 16 609825 (9th Cir. February 17, 2021) at *1-*2 (comparing Biestek v. Berryhill, at 1154, 17 with I.N.S. v. Elias-Zacharias, 502 U.S. 478, 481 n. 1 (1992) and the language adopted 18 by Congress in 8 U.S.C. § 1252(b)(4)(B)). 19 If the ALJ’s decision is based on a rational interpretation of conflicting evidence, 20 the Court will uphold the ALJ’s finding. Carmickle v. Comm’r of Soc. Sec. Admin., 533 21 F.3d 1155, 1165 (9th Cir. 2008). It is unnecessary for the ALJ to “discuss all evidence 22 presented”. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 23 1984) (citation omitted) (emphasis in original). The ALJ must only explain why
24 “significant probative evidence has been rejected.” Id. 1 IV. DISCUSSION 2 In this case, the ALJ found that Plaintiff had the severe, medically determinable 3 impairments of lumbar and cervical degenerative disc disease, osteoarthritis, and 4 history of shoulder strains. AR 17. The ALJ also found that plaintiff had a medically non-
5 severe impairment of depression. AR 18. 6 Based on the limitations stemming from plaintiff’s impairments, the ALJ found 7 that plaintiff could perform a reduced range of light work. AR 19. Relying on vocational 8 expert (“VE”) testimony, the ALJ found that plaintiff was unable to perform any past 9 relevant work, but she could perform other jobs, including the jobs of hand 10 packager/inspector, electrical accessory assembler, and production assembler. AR 22- 11 23, 48-50. The ALJ therefore determined at step five of the sequential evaluation that 12 plaintiff was not disabled. AR 23. 13 A. Whether the ALJ properly evaluated the medical opinion evidence 14 Plaintiff contends that the ALJ erred in discounting the opinion of treating
15 physician Cathleen O’Farrell. Dkt. 12, at 3-4. 16 In assessing an acceptable medical source – such as a medical doctor – the ALJ 17 must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of 18 either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 19 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 20 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining physician’s opinion is 21 contradicted, the opinion can be rejected “for specific and legitimate reasons that are 22 supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing 23 Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d
24 499, 502 (9th Cir. 1983)) 1 Plaintiff saw Dr. O’Farrell for treatment between November 2016 and June 2017. 2 See, e.g., AR 315-16, 385-86. On January 13, 2017, Dr. O’Farrell wrote a short 3 statement that “[plaintiff] has chronic illness that limits her ability to walk, lift and work. I 4 have advised her to apply for long term permanent disability.” AR 296. The ALJ gave
5 little weight to Dr. O’Farrell’s opinion, reasoning that the reported limitations were too 6 vague to be useful to the ALJ’s determination of the plaintiff’s Residual Functional 7 Capacity (“RFC”). AR 21. The ALJ also reasoned that the opinion was inconsistent with 8 the “weak objective evidence, routine and conservative course of treatment, and 9 [plaintiff’s] activities of daily living such as house and yard work.” Id. 10 With respect to the ALJ’s first reason, a finding that a physician’s opinion is not 11 well explained can serve as a specific and legitimate reason for discounting that 12 opinion. See 20 C.F.R. § 404.1527(c)(3) (The better an explanation a source provides 13 for a medical opinion, the more weight the Social Security Administration will give that 14 opinion). “An ALJ need not accept a [controverted] treating physician’s opinion that is
15 conclusory and brief and unsupported by clinical findings.” Tonapetyan v. Halter, 242 16 F.3d 1144, 1149 (9th Cir. 2001). If a treating physician’s opinion names limitations 17 without specifying the degree of the plaintiff’s functional limitations, an ALJ may 18 reasonably discount the opinion as inadequate for the purpose of determining the RFC. 19 Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020). 20 Here, Dr. O’Farrell’s opinion was controverted by the opinions of the state 21 agency consultants, whose opinions the ALJ gave significant weight, which plaintiff 22 does not argue to have been error. AR 21. Dr. O’Farrell’s statement named lifting and 23 walking as plaintiff’s areas of limitation, but Dr. O’Farrell did not state the extent of
24 1 plaintiff’s limitations or specify any evidentiary basis for her conclusion that these 2 limitations prevented plaintiff from working. AR 292. The ALJ therefore offered a specific 3 and legitimate reason to give Dr. O’Farrell’s opinion little weight. 4 The Court need not assess whether the ALJ’s other reasons were proper, as any
5 error would be harmless. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 6 1162 (9th Cir. 2008)). 7 Plaintiff also contends that the ALJ failed to incorporate a limitation found by Dr. 8 Platter and Dr. St. Louis; plaintiff alleges the RFC is missing the limitation that “Plaintiff 9 was bilaterally limited to only occasional lateral reaching.” Dkt. 12, at 7; see AR 63, 86 10 (doctors’ opinions). Yet the ALJ accorded these opinions significant weight, and the 11 RFC specifically stated that “[plaintiff] is limited to occasional overhead bilateral 12 reaching.” The ALJ did not err here. 13 B. Whether the ALJ properly evaluated other opinion evidence 14 Plaintiff contends that the ALJ erred in giving the testimony of Ms. Einerson,
15 ARNP, less weight. Dkt. 12, at 3. As a nurse practitioner, Ms. Einerson is considered 16 other than an accepted medical source, whose opinion is treated as lay testimony. 20 17 C.F.R. § 404.1513(d) (effective Sep. 3, 2013 to Mar. 26, 2017) (nurse practitioners are 18 considered other medical sources). 19 Lay testimony regarding a claimant’s symptoms “is competent evidence that an 20 ALJ must take into account,” unless the ALJ “expressly determines to disregard such 21 testimony and gives reasons germane to each witness for doing so.” Lewis v. Apfel, 236 22 F.3d 503, 511 (9th Cir. 2001). In rejecting lay testimony, the ALJ need not cite the 23 specific record as long as “arguably germane reasons” for dismissing the testimony are
24 1 noted, even though the ALJ does “not clearly link his determination to those reasons,” 2 and substantial evidence supports the ALJ’s decision. Id. at 512. The ALJ also may 3 “draw inferences logically flowing from the evidence.” Sample, 694 F.2d at 642. 4 Ms. Einerson examined plaintiff on January 26, 2017 and completed a form
5 about plaintiff’s physical abilities. AR. 297-303. In the form, Ms. Einerson twice marked 6 that plaintiff was limited to sedentary work, but her notes state that plaintiff “can work 7 light duty.” AR 298-99, 299, 304. Ms. Einerson rated plaintiff’s functional limitations as 8 “mild.” AR 298. 9 The ALJ assigned “some but less than great weight” to Ms. Einerson’s opinion, 10 giving weight to the portion of the opinion that plaintiff could engage in light duty work 11 and discounting the opinion limiting plaintiff to sedentary work. AR 21. The ALJ 12 reasoned that the opinion was internally inconsistent, as the examination report did not 13 contain evidence to support a sedentary limitation. Id. The ALJ also reasoned that the 14 opinion was inconsistent with the “weak objective evidence, routine and conservative
15 course of treatment, and activities of daily living.” Id. 16 An internal inconsistency can serve as a specific and legitimate reason for 17 discounting a physician’s opinion. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 18 595, 603 (9th Cir. 1999); see also Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 19 2001) (upholding ALJ’s rejection of an internally inconsistent medical opinion). Here, the 20 ALJ noted that the examination results had not included any observations of plaintiff’s 21 distress or pain behavior, weakness or atrophy in plaintiff’s extremities, or difficulty 22 walking, which is consistent with the note that plaintiff could perform light duty work but 23 inconsistent with a sedentary limitation.
24 1 As such, the ALJ provided a specific and legitimate reason, that is, even greater 2 than a germane reason, for giving less than great weight to Ms. Einerson’s opinion. As 3 discussed above, the Court need not assess whether the ALJ’s other reasons were 4 proper, as any error would be harmless. See Presley-Carrillo v. Berryhill, 692 Fed.
5 Appx. 941, 944-45 (9th Cir. 2017) (citing Carmickle v. Comm’r of Soc. Sec. Admin., 533 6 F.3d 1155, 1162 (9th Cir. 2008)). 7 Plaintiff also contends that the opinions of Mr. Jensen and Ms. Ragan were 8 improperly discounted. Dkt. 12, at 6-7. Mr. Jensen and Ms. Ragan, therapists, treated 9 plaintiff for her anxiety and depression. AR 355-80. On June 9, 2017, these counselors 10 opined that plaintiff was “making progress regarding managing symptoms of her mental 11 health,” but that she might “regress if . . . she became engaged in any work activity that 12 would require more than minimal hours.” AR 355. 13 The ALJ gave this letter little weight, reasoning that (1) plaintiff had received 14 limited mental health treatment, suggesting her symptoms would not be limiting for 12
15 consecutive months; (2) the opinion was inconsistent with the record, which lacked 16 observations that plaintiff’s mental symptoms affected basic work activities; and (3) 17 plaintiff had not alleged that her mental health conditions were disabling or limiting at 18 the administrative hearing. AR 19. 19 The ALJ noted that plaintiff’s mental health counseling ceased after several 20 months in 2017, during which she “mostly complained of situational stress.” AR 19. The 21 ALJ noted that she had not sought additional mental health treatment after she reported 22 resolving some of her situational stressors (e.g., her relationship, housing). Id. 23 Additionally, the ALJ cited to Mr. Jensen and Ms. Ragan’s treatment notes, finding that
24 1 the notes did not contain observations of significant difficulty with “attention, 2 concentration, memory, or social interactions.” Id. 3 In response to the ALJ’s argument that the letter is inconsistent with the medical 4 record, plaintiff argues that treatment notes from plaintiff’s treating physicians support
5 the opinions of her therapists. Dkt. 12, at 6. Yet plaintiff does not identify any functional 6 limitations assessed in the letter or argue that the opinions support plaintiff’s inability to 7 perform basic mental work activities. Plaintiff has not alleged any functional limitations 8 caused by her mental impairments. See Dkt. 12. Accordingly, the ALJ provided a 9 germane reason to discount the letter from Mr. Jansen and Ms. Ragan. 10 Plaintiff also alleges error in the ALJ’s failure to discuss notes made by SSI 11 Facilitators Mr. Roper and Ms. Newkirk. Dkt. 12, at 15, citing AR 240-42. These notes 12 are checkbox forms to list observations from face-to-face encounters with plaintiff, but 13 they do not contain opinions on plaintiff’s functional limitations. AR 240-243. As such, 14 this is not lay witness testimony requiring discussion by the ALJ: the ALJ is not required
15 to address every note or observation in the record. Vincent on Behalf of Vincent v. 16 Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (the ALJ “need not discuss all evidence 17 presented” to him or her) (emphasis in original). 18 C. Whether the ALJ properly evaluated plaintiff’s testimony 19 Plaintiff contends that the ALJ did not provide clear and convincing reasons for 20 discounting her symptom testimony. Dkt. 12, at 7-15. 21 In weighing a Plaintiff’s testimony, an ALJ must use a two-step process. Trevizo 22 v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine whether 23 there is objective medical evidence of an underlying impairment that could reasonably
24 1 be expected to produce some degree of the alleged symptoms. Ghanim v. Colvin, 763 2 F.3d 1154, 1163 (9th Cir. 2014). If the first step is satisfied, and provided there is no 3 evidence of malingering, the second step allows the ALJ to reject the claimant’s 4 testimony of the severity of symptoms if the ALJ can provide specific findings and clear
5 and convincing reasons for rejecting the claimant’s testimony. Id. See Verduzco v. 6 Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). 7 In discounting Plaintiff’s symptom testimony, the ALJ reasoned that plaintiff’s 8 allegations concerning the intensity, persistence and limiting effects of her physical and 9 mental impairments were inconsistent with the medical record. AR 22. Specifically, the 10 ALJ found that (1) only weak objective evidence supported plaintiff’s claims, (2) plaintiff 11 had received only routine and conservative treatment; and (3) plaintiff’s reported 12 activities of daily living indicated that she was less limited than she alleged. AR 22-24. 13 Regarding the ALJ’s first reason, an inconsistency with the objective evidence 14 may serve as a clear and convincing reason for discounting a claimant’s testimony.
15 Regennitter v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 16 1998). But an ALJ may not reject a claimant’s subjective symptom testimony “solely 17 because the degree of pain alleged is not supported by objective medical evidence.” 18 Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 1995) (internal quotation marks 19 omitted, and emphasis added); Byrnes v. Shalala, 60 F.3d 639, 641-42 (9th Cir. 1995) 20 (applying rule to subjective complaints other than pain). 21 Regarding the ALJ’s second reason, evidence of conservative treatment is a 22 clear and convincing reason for discrediting a claimant’s testimony. Parra v. Astrue, 481 23 F.3d 742, 750-51 (9th Cir. 2007); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir.
24 1 2001). Plaintiff does not challenge the characterization of her treatment as routine or 2 conservative. See Dkt. 12, at 10. Instead, plaintiff argues that conditions that may “only 3 be treated with ‘routine and conservative’ treatment” are still capable of causing 4 disability, but plaintiff has not argued that her own condition is limited to such treatment.
5 Dkt. 12, at 10 (emphasis added). 6 The ALJ cited to plaintiff’s positive response to physical therapy with respect to 7 her pain and functioning. AR 20, citing AR 425, 445, 449. The ALJ also noted that 8 plaintiff’s pain management regime, consisting of hydrocodone and Flexeril, underwent 9 few changes over the course of plaintiff’s treatment. AR 20, citing 304. The ALJ 10 permissibly inferred that plaintiff’s pain was “relatively managed” by treatment, 11 undermining plaintiff’s reports regarding the disabling nature of her pain. Substantial 12 evidence supports the ALJ’s reasoning here. 13 Finally, plaintiff argues that her activities of daily living are not inconsistent with 14 her testimony. Dkt. 12. A claimant’s participation in everyday activities indicating
15 capacities that are transferable to a work setting may constitute a clear and convincing 16 reason for discounting that claimant’s testimony. See Morgan v. Comm'r Soc. Sec. 17 Admin., 169 F.3d 595, 600 (9th Cir.1999). The ALJ cited to plaintiff’s function report, in 18 which she indicated that she prepares small meals, does light housework, drives, and 19 shops in stores. AR 21, citing 268. Plaintiff’s ability to engage in these routine, 20 undemanding activities does not constitute a clear and convincing reason for 21 discounting Plaintiff’s testimony. Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) 22 (“House chores, cooking simple meals, self-grooming, paying bills, writing checks, and 23 caring for a cat in one’s own home, as well as occasional shopping outside the home,
24 1 are not similar to typical work responsibilities.”). Furthermore, the Commissioner 2 concedes that the ALJ improperly relied on plaintiff’s ability to barbeque, visit parks, and 3 go on road trips once a year. Defendant’s Responsive Brief, Dkt. 13, at 7. 4 The ALJ also cited to plaintiff’s reports of gardening weekly and treatment notes
5 referring to plaintiff doing garden and yard work. AR 21, citing 268, 345, 385. Plaintiff’s 6 gardening habit tends not to support the ALJ’s conclusion that plaintiff could engage in 7 more strenuous physical activity. Rather, due to gardening and yard work exacerbating 8 plaintiff’s pain, plaintiff’s physician advised her to avoid pushing and pulling in the 9 garden, eventually administering steroid injections to plaintiff’s injured shoulder. AR 345. 10 Plaintiff complied with her physician’s advice and ceased keeping a garden, as she 11 testified in the disability hearing. AR 40. 12 Despite these errors, the ALJ provided another clear and convincing reason to 13 discount plaintiff’s testimony. The ALJ did not err to find that plaintiff’s testimony at the 14 hearing of being unable to walk more than a block conflicted with her report to her
15 physical therapist six months prior, that she had begun walking two miles per day at the 16 mall. AR 21, citing AR 39, 449. Accordingly, the ALJ did not err when discounting 17 plaintiff’s subjective symptom testimony. See Presley-Carrillo v. Berryhill, 692 Fed. 18 Appx. 941, 944-45 (9th Cir. 2017) (citing Carmickle v. Comm’r of Soc. Sec. Admin., 533 19 F.3d 1155, 1162 (9th Cir. 2008)). 20 D. Whether the ALJ properly evaluated plaintiff’s impairments at step two 21 Plaintiff asserts that the ALJ erred by failing to find her depression to be a severe 22 impairment at step two. Dkt. 12, at 7. Plaintiff claims the ALJ inappropriately discounted 23 the opinions of Mr. Jensen and Ms. Ragan in coming to his conclusion that the
24 1 impairment was not severe, and that the ALJ should have questioned plaintiff about her 2 depression and the resulting limitations at the hearing. Id. at 6. 3 At step two, the claimant has the burden of establishing that they have medically 4 determinable, severe impairments. See Bustamante v. Massanari, 262 F.3d 949, 953-
5 54 (9th Cir. 2001). An impairment is medically determinable only when its existence can 6 be shown through objective medical evidence such as laboratory findings and tests 7 done using acceptable clinical diagnostic techniques. Ukolov v. Barnhart, 420 F.3d 8 1002, 1005 (9th Cir. 2005) (internal citations omitted). “‘[R]egardless of how many 9 symptoms an individual alleges, or how genuine the individual’s complaints may appear 10 to be, the existence of a medically determinable physical or mental impairment cannot 11 be established in the absence of objective medical abnormalities; i.e., medical signs and 12 laboratory findings.’” Ukolov, 420 F.3d at 1005 (internal citations omitted). 13 With respect to Plaintiff’s depression, the ALJ found the impairment medically 14 determinable, but non-severe, because plaintiff had not demonstrated “more than
15 minimal limitation in [plaintiff’s] ability to perform basic mental work activities.” Id. The 16 ALJ considered whether plaintiff had difficulty understanding, remembering or applying 17 information; interacting with others; concentrating, persisting, or maintaining pace; and 18 adapting or managing herself. Id. (pursuant to the four areas of mental functioning 19 found in 20 C.F.R. Part 404, Subpart P, App’x 1). The ALJ found mild limitation in all 20 categories, based on a lack of objective observations from her healthcare providers that 21 plaintiff had difficulty with any of these mental work activities. AR 18. 22 Plaintiff argues that the ALJ failed to consider treatment notes from her providers 23 noting plaintiff’s emotional volatility and tearfulness, as well as observations by two SSI
24 1 facilitators, that plaintiff had demonstrated some difficulty with concentration, 2 understanding, coherency, talking and answering. Dkt. 12, at 6, citing AR 348, 380, 364, 3 378-79, 392; id. at 15, citing AR 240-242. Yet plaintiff does not argue how the evidence 4 of her mental health symptoms affected her ability to function in a work environment,
5 nor does she otherwise assert limitations stemming from her depression that are 6 missing from the ALJ’s assessment of her RFC. 7 The ALJ’s duty to develop the record is not triggered by plaintiff’s allegation that 8 the ALJ should have questioned her at the disability hearing, particularly when at the 9 hearing, plaintiff herself did not allege that her depression caused her any limitations. 10 AR 42-28 (plaintiff testified to pain as the reason for her limitations); see Mayes v. 11 Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). 12 Because plaintiff does not allege that her depression causes distinct functional 13 limitations more restrictive those already contained in the RFC, plaintiff has not met her 14 burden to demonstrate that her impairment was severe. See Matthews v. Shalala, 10
15 F.3d 678, 680 (9th Cir.1993) (“The mere existence of an impairment is insufficient proof 16 of a disability”); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir.1988) (noting “[t]he mere 17 diagnosis of [an impairment] ... says nothing about the severity of the [diagnosed] 18 condition). Accordingly, the ALJ did not err at step two of the evaluation. 19
21 22 23 24 1 V. CONCLUSION 2 Based on the foregoing discussion, the Court finds the ALJ properly determined 3 plaintiff to be not disabled. Defendant’s decision to deny benefits therefore is 4 AFFIRMED.
5 6 Dated this 17th day of March, 2021.
7 A
8 Theresa L. Fricke United States Magistrate Judge 9
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